[2003]JRC030

ROYAL COURT

(Samedi Division)

 

13^th February 2003

 

 

The Attorney General

-v-

Darren Neil McCormack

 

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 20th January, 2003, following a guilty plea to:

 

1 count of:	Breaking and entering with intent to commit a crime (count 1).
1 count of:	Grave and criminal assault (count 2).

 

Age:  24

 

Details of Offence:

Kicked in door of victim’s accommodation and entered with a bottle which the accused smashed on a basin located just inside the door.  Accused attacked the victim with the broken bottle who was in bed and unable to escape, stabbing him approximately ten times.  Seventeen lacerations to the victim’s chest, arms, back and head.  Victim required emergency resusscitation, a blood transfusion and surgery.  The accused deliberately evaded arrest for 3 days, initially denied the assault, but later admitted he was responsible although he could not recall the incident and detail due to his level of intoxication.  

 

Details of Mitigation:

Early guilty plea.  Record substantial although only one offence of violence of a relatively minor nature.  Residual youth.  Expression of remorse in interview and in a letter handed up to the Court.  Had a difficult upbringing without parental input.  Recently formed a stable relationship and due to marry in September.  Had already taken parental responsibility for his fiancée’s two young children.  The couple had recently come into property in Scotland and intended to move there.  Offer of employment upon release. 

 

Previous Convictions:

20 appearances since 1996.  42 recorded offences including perverting the course of justice, possession of an offensive weapon, assault and breaking and entering.  In breach of Probation Order for assault, sentenced only 13 days before this incident.

 

Conclusions:

Count 1:	3 years’ imprisonment.
Count 2:	6 years’ imprisonment, concurrent.

 

Sentence and Observations of Court:

Conclusions granted.

English authorities might have been particularly helpful, however obliged to follow the Court of Appeal in Mallet.  Therefore the starting point restricted to 8 years.  Court found concept of a starting point difficult to apply.  Court took into account all mitigation put before the Court.  However, Court found this was an extremely serious assault, a frenzied attack, which must have been terrifying for the complainant. 

 

 The Attorney General.

Advocate A. Clark for the defendant.

JUDGMENT

THE commissioner:

1.        The facts as outlined by the learned Attorney General show a very serious incident.  A relatively minor altercation at a party on 26^th October 2002 led to this violent incident occurring the day after the party. The complainant was in bed at 5 o’clock when he heard the noise of a drunken party next door.  About two hours later his door was kicked in.  The defendant called him a “prick”; he smashed a bottle he was holding in his hand against a sink and lunged towards him, stabbing him several times with the lacerated glass. The complainant managed to escape and ran from the room, seeking help from his landlady.  She, fortunately, called an ambulance.  At the hospital he was taken to emergency resusscitation and given intravenous fluids before undergoing a blood transfusion.  Had he not managed to get help from the landlady, he might very well have died from his injuries.

2.        The injuries need not be detailed.  They have been clearly set out for us by the learned Attorney, but the photographs that we have seen have greatly assisted us in ascertaining the full extent of the injuries.  Dr Holmes concluded that there were some 10 separate blows from the broken bottle, most of which were thrusts, rather than slashes.  The debris from the door and the blood on the walls and the bed linen leave us in no doubt that this was a frenzied attack.  It must, indeed, have been a terrifying incident for the complainant. 

3.        When identified by the complainant, McCormack tried to avoid arrest but he was eventually arrested on 30^th October.  He had successfully evaded arrest for some three days.  In his second interview he admitted the offence.  He said that he had been so drunk that he could not remember the incident with any clarity, but he appeared very shocked when the extent of the complainant’s injuries were revealed.  He pleaded guilty on his first appearance before the Magistrate’s Court.  He has appeared some twenty times before various courts since 1996 and he has, as the Attorney General has so carefully outlined to us, received every form of sentence.  He is no stranger to prison.  At the time of this offence he was already subject to a six month probation order which he has of course breached.

4.        We have before us a problem.  We have looked at the English cases of Pacholok (2001) 1 Cr.App.R. (s) 110, Pollin (1997) 2 Cr.App.R. (S) and the Attorney General’s reference No.4 of 1998, Mark Richard Ward (1998) 2 Cr.App.R. (S).  Those cases might have been particularly helpful had the Court of Appeal not clearly set out that it regards a starting point as essential for offences of this nature. 

5.        This Court in AG -v- Barnes (12^th February 2002) Jersey Unreported; [2002/40], in AG –v- Hanby (20^th March 2002) Jersey Unreported; [2002/66], Sangster –v- AG (29^th April 2002) Jersey Unreported; [2002/87] and in Nash –v- AG (14^th May 2002) Jersey Unreported; [2002/97], has expressed its own views most forcefully, but we have to remind ourselves that in Mallet –v- AG  (24^th May 2000) Jersey Unreported; [2000/87] the Court of Appeal said this:

“The Court emphasises the desirability of any Court imposing a sentence identifying as a starting point the sentence it would have imposed had the defendant had pleaded not guilty, was not of good character and offered no excuse nor valid mitigation.  It would also be appropriate, where there are a number of accused who played different rôles in the commission of the offence to make at this stage adjustments to starting points for each offender.  Based on what we have quoted from Blackstone, it follows that the starting point in cases of grave and criminal assault where there is clearly an intent to cause serious harm should be up to eight years.”

6.        And in Le Monnier –v- AG (2000) JLR 256 CofA, the Court of Appeal also said this:

“This Court has reached these conclusions:

(a)       Evans –v- AG, in so far as it related to the sentencing of Phillips was wrongly decided and should not be followed.

(b)      The decision in Mallet, both in the Royal Court and in the Court of Appeal was correctly decided and should be followed.

(c)       In cases of grave and criminal assault, it is desirable for the sentencing court first to identify the appropriate starting point.  The starting point identified will represent a sentence which would be appropriate for the offence under consideration (including any aggravating circumstances), but will disregard any mitigating circumstances that there may be.  From the starting point an appropriate deduction should then be made to take into account any of the mitigating circumstances.  In this way, an appropriate sentence for the offence under consideration will be reached.”

And in Channing –v- AG (26^th October 2001) Jersey Unreported CofA; [2001/213], the Court of Appeal, having said that sentencing was an art rather than a science, went on to talk again about starting points.

7.        Mr Clark has very forcefully argued the several mitigating factors:

(i)        As he says, there was firstly the guilty plea, as at a trial there could have been expensive and difficult problems about identification;

(ii)       Secondly he has dealt with the defendant’s remorse.  We have a letter from McCormack and two letters in support of him.  Each of the three letters makes it clear that his remorse is real and the defendant and his present fiancé hope to marry in September of this year; 

(iii)      There are two small children who regard McCormack as their father; 

(iv)      The couple have come into property in Scotland and hope to return there;

(v)       His previous record has only one incident of assault, where apparently he spat at a girlfriend;

(vi)      And he is still a comparatively young man.

8.        The Court has considered most carefully all the factors.  We have to say that we found the concept of a starting point a difficult one but it is not for this Court in any way to take issue with the wisdom of the Court of Appeal.  Nevertheless, the Court has given the matter its most careful consideration but we cannot fault the conclusions of the learned Attorney, essentially because of the extreme seriousness of the offence.  Therefore, McCormack, in respect of count 2 you are sentenced to six years’ imprisonment, in respect of count 1 to three years’ imprisonment, concurrent.

Authorities

AG –v- Mallet Jersey Unreported; [2000/87]

Mallet –v- AG [2000] JLR 256 CofA.

Le Monnier –v- AG [2000] JLR 399 CofA.

Attorney General’s Reference No.43 of 2002 (Pacholok) (2001) 1 Cr. App. R. (S) 110.

Attorney General’s Reference No.4 of 1998 (Ward) (1998) 2 Cr.App.R (S).

Pollin (1997) 2 Cr.App.R. (S)

Attorney General’s Reference No.132 of 2001 (Johnson) [2003] 1 Cr.App.R. (S); [2002] EWCA Crim.1418

Sangster –v- AG Jersey Unreported; [2002/87]

Nash –v- AG  Jersey Unreported; [2002/97]

AG –v- Barnes Jersey Unreported; [2002/40]

AG –v- Hanby Jersey Unreported; [2002/66].

Channing –v- AG Jersey Unreported CofA; [2001/213]